(I am back after a couple of weeks of intense thesis immersion. So let's talk about The Legend of Zelda.)
Let's be honest: If you never wanted to erase Navi, link's fairy companion in The Ocarina of Time, then you never played The Ocarina of Time. If I had to make a list of the top modifications I wanted to otherwise great games, deleting Navi would top the list, and it wouldn't even be close. If I had the time, energy, and technical skill, I would go back and erase Navi from the game myself, just to be able to go back and play the game without her.
Entrepreneur, gamer, and candidate for Dad of the Year Mike Hoye recently modded his own copy of The Wind Waker, Link's first adventure on the GameCube in the Legend of Zelda series. He didn't remove the fairy companion; to the best of my knowledge (I don't own a GameCube), there is no fairy companion in The Wind Waker. Instead, he painstakingly changed the dialogue to change protagonist Link's gender from male to female.
Hoye enjoys playing video games with his daughter, but was frustrated by the lack of positive female role models in games. So he did the sensible thing, and built one. He didn't change the plot or the function of the game, just a few words here and there to make the game more accessible to his daughter. He also made his modifications available to the public for other concerned parents.
But this isn't a post about gender in video games. Everyone knows that video games have done a terrible job of handling gender in any sensible way, with very few and limited exceptions. No, I want to talk about copyright. Mike Hoye's labor of love is demonstrative of why our copyright system isn't just broken; it's insanely broken.
Why? Hoye's brilliant Zelda hack is probably illegal.
Let's step back, for a moment, from Zelda. Let's talk about Dr. Seuss instead.
The Lorax is a brilliant book, for so many reasons. The most clever part of the book (or the essentially word-for-word 1972 animated adaption) is the fact that you never see the face of the Once-ler. A savvy adult reader will notice that the real central character of The Lorax is not the Lorax, and it is not the boy, but it is the Once-ler. The Once-ler could be anyone, because the Once-ler is all of us. But the Once-ler is very clearly male. The reader never sees his face, and he doesn't have a gendered name, but he is referred to using male pronouns.
So let's suppose an enterprising parent decides to change the book for his or her children. Now, obviously, it is not possible to simply reach into the book and rearrange the words. The text is protected, in a manner of speaking, by the fact that the ink is indelibly printed on the page. So this parent gathers a few tools -- white out (correction fluid), a ruler, and a set of pens -- and painstakingly changes the gender of the Once-ler from male to female. This parent then reads the slightly altered book to his or her children. The parent even tells his or her friends about it, in case they want to do the same for their children.
I don't think that anyone would seriously argue that this parent has done something wrong. Technically speaking, this change would be subjected to a copyright violation claim by the publisher, since this new text would be an unauthorized derivative work of the original. The good news for our hypothetical parent is that the publisher is extremely unlikely to bring this claim, because it will most probably fail. The parent seems to have a rock solid fair use defense, since the changes are minimal, there is no actual copying, and this little book hack could not possibly affect the commercial market for the original. In fact, some parents put off by the male-centrism of the book might go out and buy a copy with the intention of implementing our clever parent's changes.
Maybe we should take comfort that, although our hypothetical parent appears to have facially committed a copyright violation, he or she is almost guaranteed the right result in the end. I find the fact that the publisher could try to bring the suit itself a bit unsettling, but maybe the fact that justice will reach the right result is enough. But ask yourself this question: Is what Mike Hoye did with his copy of The Wind Waker any different, in any meaningful way, from our hypothetical parent taking white out and a pen to The Lorax?
The law says it is, because he had to circumvent a digital protection measure to do it. The Digital Millennium Copyright Act ("DMCA"), passed in 1996 to address concerns of digital copyright violation, prohibits not just the copying of digital media, but also "circumvent[ing] a technological measure that effectively controls access to a work." In other words, if a copyrighted work incorporates code or other technology preventing copying or modifying the work, it is a violation to crack that code, in addition to any underlying copyright violation.
GameCube discs, like every other console game system, contain certain anti-copying measures (sometimes called "digital rights management" technology or "DRM") to prevent users from making unlicensed copies of their games. For our purposes, it doesn't matter what those measures are, just that they are designed to control access to the game files themselves, such that the only pairing of game and machine that is supposed to work properly is an actual GameCube with an original, licensed game disc. To implement his edits, Hoye had to copy the game files and repackage them (he currently plays the game on an emulator on his computer), meaning he had to circumvent those copy protections. (In practice, most of these copy protections are very easy to evade.)
But wait! Isn't Hoye protected by the fair use exception, just like our Lorax-loving parent? Maybe not. It is the prevailing view that fair use does not apply to circumvention. Practically speaking, this means that circumvention is a violation even if it is done for a legal purpose. If this applied to regular paper-and-ink works, it would be the same as saying that changing the Once-ler from male to female was fine, but actually applying the white out to do it was illegal. But this regime only applies to digital works, so our Seussical feminist is fine. But The Wind Waker is subject to the DMCA; circumventing its copy protection is illegal; so Hoye may not be so lucky.
This result can't be right. When we were talking about The Lorax, it seemed that our parent had done nothing wrong. So how can it be that Hoye has done something potentially subjecting him to civil liability? One could levy a number of potential arguments at Hoye, but all of them fail logically:
Hoye violated the integrity of the work by changing its aesthetic qualities without the author's permission. That may be true, but it doesn't fly -- not here in the U.S., anyway. U.S. copyright does not, generally speaking, recognize an author's "moral rights" in a creative work, except in extremely narrow cases (unique visual works, like sculptures or paintings -- video games certainly don't fit). This argument might get some traction in some European countries, but not here.
Hoye infringed by distributing his modified game file. Not quite. He didn't distribute the game, just the file containing the dialogue. The dialogue file is useless without the game itself. This doesn't really seem any different from the Lorax parent explaining to friends which words to change and showing them where to get white out.
If consumers think the original game is sexist because Hoye's hack points out its gender bias, they might not buy it, so the hack affects the commercial market. I have actually heard this argument before, but this one doesn't fly either. Even assuming that Hoye's changes discourage people from buying the original (and I doubt it -- like I said above, this might encourage some parents to actually buy the game and do the same themselves), criticism of a work affecting its commercial market is not the same as distribution affecting the market. This is well established law.
In purchasing the Wind Waker disc, Hoye did not purchase a copy of the game, only a license to use the game. This is another one I hear all the time, and it actually gets some traction. In fact, U.S. law often accepts this argument. But it is demonstrably insane. Imagine if our hypothetical Seuss-lover received, with his or her copy of The Lorax, a slip of paper that said, "You do not own this copy of this book, only a license to it. You may not use this book for the following purposes ..." How crazy would that be? What kind insane world would we live in if book publishers could ban unauthorized "derivative uses" like dog-earing pages, writing in the margins, or cutting out pages, just by slapping a sticker on the book that says "license"? (These are all things I've done, for various reasons. Troubling note: These are also all things that ebook publishers have purported to prohibit.) We would be absolutely indignant and incredulous if a book publisher tried to limit us in this way; why should this video game be any different?
I suppose that there is some extremely marginal chance that our Lorax parent could be found liable for copyright infringement. As I said above, even the fact that a claim against this parent could be brought by a lawyer (without facing disciplinary charges of frivolous litigation) is troubling to me. But it doesn't seem like the Lorax parent has done anything wrong, and in the end this parent would be almost certain to win in court. (Consider also this disturbing thought: If this hypothetical parent could have to answer in court for changing a few words in the Lorax, would you have to answer in court for taking notes in the margins and underlining key language in a textbook?)
But I can't identify anything that Hoye has done differently from our hypothetical Lorax parent, except that Hoye used a computer to edit a digital disc, and the Lorax parent used pens to edit a physical book. I can't find any meaningful place to draw a moral line between Hoye and the hypothetical Lorax parent. But one appears perfectly within the bounds of the law, and the other may not be.
The only way I can explain that is this: The DMCA is horribly broken. By focusing on technology instead of use, Congress created a legal regime that completely lacks sense. The law is so far divorced from our moral notions that it can only be described as "insane".
Now, I don't think that Nintendo will come after Hoye. What he did was so harmless that there is nothing to gain for them. Indeed, the only thing they would get by suing Hoye would be bad press, something that Nintendo really doesn't need with a new game system on the horizon. But they could -- and, with statutory damages available, they could hurt him badly. The very fact that this is possible is what appalls me.
I'll leave the discussion of how to fix this reality-defying problem for another discussion at another time. But, in the meantime, I challenge anyone to explain how this makes one lick of sense.
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